Citation Nr: 9901434
Decision Date: 01/21/99 Archive Date: 02/01/99
DOCKET NO. 97-34 790 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to a special monthly pension based on the need
for regular aid and attendance or at the housebound rate.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C.A. Skow, Associate Counsel
INTRODUCTION
The appellant served on active duty from October 1940 to
October 1945.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a January1997 rating decision of the
North Little Rock, Arkansas, Department of Veterans Affairs
Regional Office (VARO).
CONTENTION OF APPELLANT ON APPEAL
The appellant contends that he requires the aid and
attendance of another person or that he is housebound.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against a special monthly pension based on the
need for regular aid and attendance or at the housebound
rate.
FINDINGS OF FACT
1. The appellant’s nonservice connected ratable disabilities
are peripheral neuropathy of the major right upper extremity
(40%), peripheral neuropathy of the left upper extremity
(30%), peripheral neuropathy of the right lower extremity
(40%), peripheral neuropathy of the left lower extremity
(40%), actinic keratosis (30%). He has a combined nonservice
connected schedular rating of 100 percent.
2. The appellant does not have disabilities that render him
so helpless as to be unable to care for his daily personal
needs without the assistance of others.
3. The appellant does not have a single disability ratable
at the 100 percent disability level along with other
unrelated disabilities which combine to at least 60 percent.
CONCLUSION OF LAW
The criteria for an award of special monthly pension benefits
based on the need for regular aid and attendance or at the
housebound rate have not been met. 38 U.S.C.A. §§ 1501,
1521, 5107 (West 1991 & Supp. 1998); 38 C.F.R. § 3.352(a)
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the appellant has submitted
evidence which is sufficient to justify a belief that his
claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 &
Supp. 1998) and Murphy v Derwinski, 1 Vet.App. 78 (1990).
Furthermore, the undersigned believes that this case has been
adequately developed for appellate purposes by VARO and that
a disposition on the merits is in order.
Records from the Visiting Nurse Association of Arkansas dated
January 1995 reflect that a nurse came to the appellant’s
home to assess and monitor his medical condition, and to
provide his family instruction on his needs and caring
regimen. At this time, it was noted that the appellant had
weakness and dizziness, but that he could be up as tolerated
and use a walker. His mental status was described as
forgetful, but oriented and alert. The nurse recertified
that the appellant required “intermittent skilled nursing
care” and indicated that he would be discharged from such
care when his family was able to manage his needs and/or he
was admitted to a long-term facility.
The appellant requested special monthly pension benefits
based on the need for regular aid and attendance or due to
being housebound in July 1996. In support of his claim, VA
outpatient treatment records for the period of July 1995 to
July1996 and a private medical report dated July1996 were
obtained; additionally, the appellant underwent VA
examinations in October, November and December 1996.
VA outpatient treatment records for the period of July 1995
to July1996 reflect treatment for multiple actinic keratosis
on the face and squamous cell carcinoma on the neck. These
records also reflect diagnoses for peripheral vascular
disease, glaucoma, hearing loss, cerebral degeneration,
seizure disorder, and depression.
A private medical report dated July 1996 reflects that the
appellant underwent an eye examination in March 1996. His
problems were noted as bilateral pseudophakia, mild macular
degeneration bilaterally, pterygia bilaterally, and glaucoma
bilaterally.
In October 1996, a VA audiometric examination revealed an
average puretone decibel (dB) loss of 53.73dB in the right
ear with 94 percent speech discrimination and 52.5dB in the
left ear with 80 percent speech discrimination. Also, in
October 1996, a VA eye examination was conducted. The
diagnoses were macular degeneration, pseudophakia, and
glaucoma.
In November 1996, a VA neurological examination was
conducted. The appellant, age 79, reported that he lived
alone, but received considerable assistance from his son. He
reported that he attended to his own personal hygiene and
dressed himself. He indicated that he was able to use the
telephone and navigate his house using a walker or walking
behind a wheelchair. He indicated that he was able to go
outside his home independently, but did so infrequently.
Gait and memory problems were also reported. Examination was
positive for a moderately severe ataxic gait. He required
assistance to stand and position himself behind a wheelchair.
Clinical findings were positive for peripheral neuropathy.
The impression was peripheral neuropathy, etiology uncertain,
possibly secondary to ethanol.
In November 1996, a VA examination for housebound status or
permanent need for regular aid and attendance was conducted.
The appellant was accompanied to this examination by his son
and they arrived by automobile. The appellant complained of
“trouble walking.” The appellant’s posture and general
appearance were noted as “thin,” his gait was ataxic, and
he had only 80 percent of normal upper and lower extremity
strength. It was noted that the appellant could walk about 1
block without the assistance of another person and that he
only left his home when absolutely necessary. He used a
walker for ambulation. The appellant was noted not to be
totally blind or bedridden. His ability to handle his own
funds was deemed questionable by the examiner. The diagnoses
were ataxia and peripheral neuropathy. Certification of need
for “higher level” aid and attendance requires that that
the examining physician certify, by checking the appropriate
box, that the claimant requires the “daily personal health
care service of a skilled provider without which the veteran
would require hospital, nursing home or other institutional
care.” The examiner checked this box on the VA form
provided.
In December 1996, a VA dermatological examination was
conducted. The impression was severe actinic damage with
numerous premalignant keratosis, but no frank malignancies at
this time.
In April 1997, a personal hearing was conducted. The
appellant testified that his son lived with him and that he
ambulated about the house with the aid of a wheelchair or
walker. He reported that, with difficulty, he was able to
shower and dress himself. He reported that his son performed
all cooking duties. He indicated that he had not driven a
car in 5 years and that his son did all the household
shopping and cleaning. The appellant complained that he had
difficulty walking and memory problems.
The appellant’s nonservice connected ratable disabilities are
peripheral neuropathy of the major right upper extremity
(40%), peripheral neuropathy of the left upper extremity
(30%), peripheral neuropathy of the right lower extremity
(40%), peripheral neuropathy of the left lower extremity
(40%), and actinic keratosis (30%). He has a combined
nonservice connected schedular rating of 100 percent.
ANALYSIS
The law allows for an increased rate of pension where an
otherwise eligible veteran is in need of regular aid and
attendance. 38 U.S.C.A. § 1521(d) (West 1991). A person is
considered in need of regular aid and attendance if the
person is a patient in a nursing home due to mental or
physical incapacity, or is helpless or blind, or so nearly
helpless or blind, as to need the aid and attendance of
another person. 38 U.S.C.A. § 1502(b) (West 1991);38 C.F.R.
§ 3.351.
Determinations as to need for aid and attendance must be
based on actual requirements of personal assistance from
others. In making such determinations, consideration is
given to various factors, such as the inability to dress or
undress, or to keep himself ordinarily clean and presentable,
the frequent need of adjustment of any special prosthetic or
orthopedic appliances which by reason of the particular
disability cannot be done without aid, the claimant’s
inability to feed himself through loss of coordination of
upper extremities or through extreme weakness, the inability
to attend to the wants of nature, or incapacity (physical or
mental) which requires care or assistance on a regular basis
to protect the claimant from hazards or dangers incident to
his daily environment. However, it is not required that all
of the disabling conditions enumerated above be found to
exist before a favorable rating may be made. The particular
personal functions which the claimant is unable to perform
should be considered in connection with his condition as a
whole. It is only necessary that the evidence establishes
that the claimant is so helpless as to need regular aid and
attendance, not that there is a constant need. 38 C.F.R.
§ 3.352(a).
When a veteran does not qualify for regular aid and
attendance, an increase in pension is warranted when in
addition to having a single permanent disability rated as 100
percent disabling under the regular schedular criteria, and
without resort to individual unemployability, the veteran
also has a separate and distinct disability, or disabilities,
rated as 60 percent disabling and which involve different
anatomical segments or bodily systems as that of the 100
percent disability; or the veteran is substantially confined
as a direct result of his disabilities and the confinement
will continue for the remainder of his lifetime. 38 U.S.C.A.
§§ 1502, 1521(e) (West 1991); 38 C.F.R. § 3.351(d) (1998).
In summary, entitlement to housebound benefits are generally
available contingent upon the showing that a single permanent
disability is ratable at 100 percent, and that the claimant
is either unable to leave his home or has additional
disability independently ratable at 60 percent or more.
38 U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. § 3.351(d)
(1998). Entitlement to the aid and attendance benefit is
predicated generally on objective evidence that a veteran is
so helpless as to require the regular aid and attendance of
another person. 38 C.F.R. § 3.352(a) (1998).
After review of the evidence of record, the undersigned
concludes that the evidence does not demonstrate that the
appellant is so helpless as to need the regular aid and
assistance of another person. Significantly, reports of VA
examinations dated October through December 1996 reflect that
the appellant had unsteadiness and imbalance in his gait,
along with only 80 percent of upper and lower extremity
strength. However, notwithstanding his physical limitations,
the appellant could ambulate independently aided by a walker
or wheelchair and he indicated that he was self-caring in
most respects, including showering, dressing, feeding, and
attending to the wants of nature. It was noted that the
appellant was able to walk up to 1 block and leave the house
if necessary. There was no indication in the medical
evidence of record or the appellant’s sworn testimony in
April 1997 that he required help with the daily activities of
living, although his son performed the grocery shopping and
food preparation chores, or that he required protection from
hazards or dangers inherent to daily life. The evidence of
record does not show that the appellant is blind,
incompetent, or bedridden, or incapable of performing the
activities of daily living.
Curiously, the examiner at the November 1996 aid and
attendance examination certified that the appellant required
a higher level of aid and attendance by checking the box on
the provided form, which states that the “veteran requires
the daily personal health care service of a skilled provider
without which the veteran would require hospital, nursing
home or other institutional care.” However, the Board
believes that the clinical findings in the November 1996 aid
and attendance examination report, coupled with the
appellant’s sworn testimony in April 1997, do not support the
examiners conclusion, as they show that the appellant is able
to shower, dress, and feed himself, leave his home if
necessary, and attend to the wants of nature; also he is not
blind, incompetent, or bedridden according to the November
1996 aid and attendance examination report. As such, in view
of the counter-weighing medical evidence and sworn testimony,
the Board is not obligated to accept the examiner's
conclusion, although favorable to appellant, that a higher
level of aid and attendance is required. See Rollings v.
Brown, 8 Vet.App. 8 (1995) (the Board is not required to
accept medical authority supporting a claim provided that its
reasons for rejecting such evidence are not based on its own
unsubstantiated medical conclusions).
In view of the above, the Board finds that the preponderance
of the evidence of record is against entitlement to a special
monthly pension based on the need for regular aid and
attendance. Additionally, the Board finds that the
preponderance of evidence of record is also against
entitlement to a special monthly pension at the housebound
rate. We note that the appellant does not have a single
disability ratable at the 100 percent disability level along
with other unrelated disabilities which combine to at least
60 percent.
ORDER
An increased rate of disability pension based on the need for
regular aid and attendance or at the housebound rate is
denied.
C.P. RUSSELL
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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